The Institutes

The Rule of Law Institute monitors and lobbies about the powers of ASIC ... It's patron is J.J. Spigelman ... Institute delighted with NSW CA's James Hardie decision ... Law & Development Institute wants the law to help poor countries economically ... Then there's the Australian Academy of Law ... What's happened to the AAL? ... Tom Westbrook investigates

Early last century the historian Frank Walker travelled across the Blue Mountains addressing locals on the achievements of the explorers Blaxland, Wentworth and Lawson.

Walker, the President of the Australian Historical Society, was determined not to let the centenary of the explorers’ efforts go unremarked.

So determined was he that he founded the First Crossing Blue Mountains Centenary Committee, of which he was inaugural president.

In fact, in nearly every town he visited he founded historical societies and centenary committees, racking up a score of inaugural presidencies.

Somehow, Frank Walker brings to mind NSW Chief Justice Jim Spigelman, who is not adverse to inaugurating institutes or taking on the mantle of patron.

One such bauble is his patronship of the loftily titled Rule of Law Institute of Australia (aka RoLIA) and in October he opened its first conference.

The Rule of Law Institute of Australia

In return for four CPD points the Rule of Law Institute, formerly merely an association, lured 80 lawyers to its inaugural conference.

They heard, among others, Tony Blair’s Attorney General, Lord Goldsmith, hold forth on “Democracy Coping with Terror”, Justice Paul Brereton on the charges brought by the Director of Military Prosecutions in Afganistan and Nicholas Cowdrey on the rule of law in NSW.

Spigelman, Goldsmith & Gilbert at Rule of Law talk shop

The not for profit organisation was established in September 2009 by partners of tax and commercial law shop Speed and Stracey.

Half of the institute’s directors are now independent from the firm, but the administration for the lobby group is run out of a back office at S and S.

The Rule of Law institute doesn't seem to have an official position on terror legislation, bikie laws or a bill of rights. 

CEO Richard Gilbert explained that the institute only published views on “issues that came before it” though he added that if someone were denied natural justice the institute “probably would come out”.

Whether it would come out on issues that directly conflicted with the interests of the firm's clients remains to be seen.

Gilbert also doubles as Speed and Stracey's director of corporate affairs.

The powers of ASIC seem to be a particular bugbear of the Rule of Law people.

Initially it was the Foreign Evidence Amendment Bill 2008, which sought to reverse the onus of proof for adducing evidence obtained from overseas, that fired-up the Speed and Stracey partners and led them to look at how the executive and parliament was undermining "rule of law" principles.

Since 2009 the institute has campaigned against what Robin Speed described as “the rule of the regulator”.

“There needs to be more checks and balances if [ATO, ACCC, ASIC, APRA and others] are to be conferred extra coercive powers,” explains Gilbert.

He cites the travel restrictions placed on Paul Hogan as an example of public officials wielding “too much power” and says the Australian Building and Construction Commissioner as “having powers a court should have”.

On ABC radio Gilbert deplored the ASIC’s performance at Senate estimates hearings:

"[ASIC] could not answer how often they use [their coercive] powers. It doesn’t even report when they use these powers."

The institute is not as troubled by ASIO's lack of accountability or its extensive coersive powers.

Nonetheless, Gilbert sees the institute as, “an agent of change ... seeking to improve accountability and transparency and upholding rights and liberties”.

As well as convening talk-fests, RoLIA distributes press releases, lobbies parliamentarians and makes regular submissions to government.

The institute has campaigned against retrospective laws, including the mining tax, against the “un-Australian” ABCC, against the treatment of Stern Hu and against the proposition that appointments to the new National Legal Services Board be made by the Attorneys General.

The way forward is “better scrutiny in the parliament” and better regulatory procedures, says Gilbert.

The RoLIA welcomed the decision of its own patron, Spigelman CJ, in the James Hardie case:

"This has significant implications for ASIC and all other regulators conducting civil penalty litigation. It goes some of the way to balance the inequity between ASIC and other regulators’ coercive factfinding powers and the resources of individual litigants. For example, ASIC can compel a witness to appear at interview; obtain search warrants to conduct searches of premises; require a witness to turn over relevant documents; obtain a telecommunications warrant for phone-tapping of suspects; and require a witness to give all reasonable assistance. An ordinary litigant has none of these powers. Under the rule of law, fairness in litigation is crucial."

The Law and Development Institute

The Law and Development Institute is a relatively new outfit dedicated to reducing third world poverty and other pressing global issues.

Its mission statement explains that it was founded because "only a very few academic institutions for law and development exist around the world".

This could be because “Law and Development”, the interdisciplinary study of law as a driver of social and economic progress, has been out of vogue since the 1960s.

Spigelman at LDI conferenceNevertheless, distinguished South Korean Professor Y. S. (Steve) Lee is leading its resurgence and once Spigelman CJ got wind of this project, Lee couldn’t keep him away.

Spigelman delivered the welcoming address at the institute’s inaugural conference in October and chaired one of the talkfest's sessions.

Lee, who lives in Sydney, describes the institute as, “primarily academic [but] focused on the interests of less developed countries [and on] improving the welfare of their populations through successful development”.

He believes there are lessons to be learned from the legal systems that propelled the rapid East Asian economic development in the second half of the 20th century.

Locally, Lee is working on economic development initiatives in East Timor, with the pro-bono assistance of DLA Phillips Fox.

Internationally, Professor Lee’s big thing is "microtrade", whereby people from under-developed countries are encouraged to sell on a small scale their products into international markets.

A new international microtrade body established within WTO could, he says, facilitate local products reaching global markets.

This would directly contribute to economic development, even in the absence of national political stability or large scale export industries.

In Australia he thinks that the law needs to better support racial minorities and in particular indigenous Australians.

Prof Lee believes microtrade would help Aboriginal artists reach more markets and realise better prices for their artworks.

Other papers presented at the conference concerned China’s legal system, Islamic finance, WTO rules and Korean exports.

The institute survives on private donations - including a large corporate donation which funded the inaugural conference - and government grants, as well as proceeds from commissioned academic work.

Australian Academy of Law

AAL was formed three years ago and is the youngest of Australia’s learned academies.

Among other things the exclusive club is charged with ensuring that the legal profession does not become a mere “multiplicity of ‘legal occupations’.”

Early bird Academy of Law members

Another objective is “the use of legal skills not merely for material personal reward”.

However, the AAL’s progress has been slow.

The membership is supposed to consist of about 400 exemplary “fellows”, but the academy’s ruling junta at ANU is still “working on the procedures for nomination and election of fellows”.

"Until such time as these procedures are established and approved by the academy, no nominations for membership can be accepted."

The impasse is expected to be resolved by March, when nominees are likely to face a membership committee and then the board before being offered a fellowship.